hearsay evidence in the CCMA

Admissibility of Hearsay Evidence in the CCMA

There is often a debate about the admission of hearsay evidence in the CCMA, and whether the rules of evidence are more relaxed in the CCMA than in the Labour Court, allowing for hearsay evidence to be considered by a Commissioner.

The general principle is that a CCMA arbitration is a hearing de novo. This means that the CCMA commissioner must hear evidence afresh at the arbitration, and may not simply consider the information advanced at the internal disciplinary hearing that preceded the dismissal of the employee.

Despite this, in Minister of Police v M and others [2017] 38 ILJ 402 (LC), the Labour Court has found that transcripts of disciplinary proceedings could be admitted as evidence without calling witnesses to give evidence thereon in the CCMA. It did so in exceptional circumstances where the matter involved the alleged rape of a child by her father who was a police officer. The daughter gave evidence at the disciplinary hearing, and a transcript of her evidence was produced at the CCMA. She refused to testify at the CCMA.

The transcripts of the disciplinary proceedings constituted hearsay evidence which is generally not admissible, but the employer applied to have the transcripts admitted as evidence. The CCMA commissioner granted the application and allowed the hearsay to be admitted, but then found that it carried very little weight and found in favour of the employee, who was reinstated.

The Labour Court found as follows:

“[36] Just as an error or irregularity in which a commissioner gives hearsay evidence too much weight may be unreasonable, the opposite is also true.  Not giving hearsay evidence sufficient weight may also constitute a material error or irregularity. If this error has a distorting effect on the end result, the award is then reviewable.

[37] In my view, the commissioner did not seem to realise that the transcripts before her were no ordinary hearsay. The transcripts were hearsay of a special type.  Considered in full, they comprised a bi-lateral and comprehensive record of earlier proceedings in which K’s evidence against RM was indeed corroborated by S and D; in which this substantiation survived competent testing by way of cross-examination; and in which RM’s own defense was ventilated and exposed as being implausible.

The Labour Court therefore accepted that the transcripts were admissible, and in addition, found that they should have been accorded more weight than the arbitrator attached to them.

The principle that emerges from this judgment is therefore that hearsay evidence in the CCMA is ordinarily inadmissible, but that there are exceptional cases where it should be admitted, and in addition, where it is admitted it should be accorded proper weight.

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